law rights & civil resource » Depositions

brain damage case in Maryland (5/5)

admin — Thu, 05 Jun 2008 11:55:05 +0000

1 including the F articles? Really it’s not based

2 on your own research.

3 A Yeah, my opinion is, but I just chose not

4 to — not to cite those articles because the other

5 articles I wrote, the review articles, incorporate my

6 own research plus others’ research.

7 Q So there are other articles on your CV now

8 that indicate you did personally your own research

9 which backs up your theory of this critical threshold,

10 correct?

11 A Well, I think they’re consistent with it.

12 I think that the ones that I cited are the — are

13 better ones because they’re broader. They cover a

14 wider range.

15 Q So the articles you cited on your CV at the

16 beginning of the deposition mention your personal

17 research about this critical threshold theory, correct?

18 A Right.

19 Q Okay. Do all the articles you cited at the

20 beginning mention that, or is there one or two

21 particular articles that mention your personal research

1 into the theory of the critical threshold being

2 reached?

3 A I’d say probably half of them do.

4 Q Can you identify for us which of the half

5 describe your personal research into the critical

6 threshold theory?

7 A No, I don’t think so.

8 Q Why not?

9 A Well, because it would — I’d have to go –

10 go over them in more detail to make an accurate –

11 Q Okay.

12 A – description.

13 Q If one would want to read those articles,

14 would it be clear from the plain language in the

15 articles that you’re describing your personal research

16 into the critical threshold theory?

17 A Yeah, I’m sure it would.

18 Q Okay. Now, you also mentioned another

19 article, the F article, describes this critical

20 threshold theory, correct?

21 A Right.

1 Q Is there any other article you can think of

2 in the world that describes the critical threshold

3 theory that you are a proponent of?

4 A I think most of the literature in this area

5 talks about the same thing.

6 Q Can you identify any of the articles that

7 you believe most subscribe to this critical threshold

8 theory?

9 A No.

10 Q Okay. You mention, “The outcome was

11 already determined at the time of the placenta previa

12 and slow heart rate was documented on ultrasound.”

13 What outcome are you referring to, the child’s current

14 condition?

15 A Yeah. The intracranial hemorrhages and the

16 white matter injury.

17 MR. G: Okay. Sir, I don’t have any

18 other questions for you. I thank you for your time as

19 always.

20 THE WITNESS: Okay. Thanks.

21 MR. J: Anybody else?

1 MR. G: Madam Reporter, we’d like a

2 minuscript and an ASCII disk, please.

3 MR. J: Anybody else? Hello?

4 MR. R: Yeah, I’d like a copy of the

5 transcript. This is Greg R. S, what’s your

6 phone number?

7 MR. K: I think I may have some

8 questions, Greg, actually.

9 MR. R: Oh, okay.

10 EXAMINATION BY MR. K:

11 Q Dr. J, my name is J.k. I

12 represent Dr. S. Can you hear me okay?

13 A Yeah.

14 Q Okay. I’ll be very brief. I want to make

15 sure that we — that I get a good understanding of your

16 credentials. First, I assume you’re licensed to

17 practice medicine?

18 A Yes.

19 Q And what states are you licensed to

20 practice medicine in?

21 A In Maryland and Pennsylvania.

1 Q Okay. And I see you’re affiliated with the

2 KK Institute and also Js H

3 University School of Medicine?

4 A Yes.

5 Q How long have you been affiliated with each

6 of those institutions?

7 A I did all my training at H, so I was

8 there for seven years, and then I have been back as a

9 professor for 13 years.

10 Q And are you board certified in any

11 specialties and/or subspecialties?

12 A Yeah. I’m board certified in pediatrics

13 and in pediatric neurology.

14 Q And do you dedicate greater than 50 percent

15 of your time to either the active clinical practice of

16 medicine and/or teaching?

17 A Yeah. It’s about 60 percent patient care,

18 20 percent research, 15 percent administration and five

19 percent classroom teaching.

20 Q And you and I have never met before this

21 deposition here today, correct?

1 A I don’t think so. I can’t see you, but I

2 don’t think we have.

3 Q I like to tell people that I look like Tom

4 Cruise, but since I’m technically under oath, I guess

5 we can’t.

6 A Okay.

7 Q I want to ask you some very brief questions

8 about your CV and then your opinions just so I have a

9 clear understanding.

10 A Okay.

11 Q I see from your curriculum vitae that you

12 have lectured all over the — all over the world

13 actually on pediatric neurology topics, correct?

14 A Right.

15 Q That includes places like Harvard

16 University, Stanford University as well as abroad,

17 correct?

18 A Right.

19 Q I see that you served in the U.S. Army, it

20 appears?

21 A Right.

1 Q I also see that you have authored more than

2 100 — or been part of the authoring of more than 100

3 peer review articles; is that correct?

4 A Right, right.

5 Q In addition, to greater than 50 book

6 chapters, correct?

7 A Right.

8 Q And all of these are on the specialty –

9 within the specialty and/or subspecialty of pediatric

10 neurology, correct?

11 A Correct.

12 Q Within the KK Institute, which

13 we got a description of and the volume of conference

14 rooms there, I understand you hold several offices.

15 What offices do you hold?

16 A I’m the medical director and chief medical

17 officer, and then I’m a senior vice president. So I’m

18 part of the management, and I’m the — responsible for

19 the medical care.

20 Q Okay. I want to briefly address your

21 opinions, and I want to make sure that I have an

1 understanding of your opinions to a medical

2 probability. Okay?

3 A Okay.

4 Q It is my understanding that you hold the

5 opinion, based upon a constellation of things, not any

6 one thing from the review of the records, but

7 specifically including the slow heart rate, the

8 placenta previa and the abruption, that the injury to

9 this child or the threshold for this injury had

10 occurred by the time the ultrasound was taken; is that

11 true?

12 A Yeah, by the time or during the time of

13 that — that the bradycardia was documented. That the

14 blood — that the blood loss had reached the point

15 where it had associated with a bradycardia where it had

16 reached the threshold for injury in a premature infant

17 like this.

18 Q Okay. So when we apply it to this specific

19 patient, in a premature infant between 28 and 31 weeks,

20 based upon the heart rate that was observed on

21 ultrasound, the placenta previa and/or abruption, you

1 are able to state to a medical probability that the

2 threshold for injury, neurologic injury, had already

3 been surpassed by that time?

4 A Yeah. I think that’s the prominent event

5 that — that was related in this case to the — to the

6 brain injury, to the white matter and to the –

7 Q Let that ambulance go by.

8 A To the brain injury — the injury to the

9 white matter and to the intraventricular hemorrhages.

10 Q Okay. And the time that the ultrasound was

11 taken was actually between 11:38 and 12:06, correct?

12 A Right. That’s what I have down.

13 Q Okay. So to put a time on this for when we

14 explain this to a jury, you believe that the damage to

15 this child — there was neurologic damage to this

16 child, and that being, as you described, the threshold

17 for injury having been surpassed, by some period of

18 time between 11:38 and 12:06, correct?

19 A Yeah. In other words, I think this was the

20 trigger. And often then it takes some time for the

21 injury to evolve later on, but that was the time in the

1 record where there’s a clear-cut evidence of — of an

2 insult that probably went on to injury.

3 Q Okay. And you aren’t able to say how long

4 before the ultrasound this threshold for neurologic

5 injury had occurred, correct?

6 A Right. In other words, I think this was

7 certainly sufficient to cause the injury, and whether

8 there had been previous episodes associated with

9 abruption, I don’t know.

10 Q Okay. And that opinion is based on all of

11 the training and accomplishments and research you’ve

12 done throughout your practice, correct?

13 A Yeah. And it’s consistent with the — the

14 primary theory for these hemorrhages and injury, which

15 is oscillations or abrupt changes in cerebral blood

16 flow. And based on the idea that I think is pretty

17 well-established that in the premature infant the

18 cerebral circulation is fairly passive and reflects the

19 infant’s heart rate.

20 MR. K: Dr. J, I thank you very

21 much for your time. I have no further questions.

1 MR. G: Anyone else on the defense?

2 MR. R: No, no questions. Greg R.

3 No questions.

4 MR. G: Then this is Z. I’m just

5 going to follow up on one thing that I didn’t ask

6 beforehand.

7 EXAMINATION BY MR. G:

8 Q Doctor, did you make any notes upon your

9 review of any of this material?

10 A Yeah. I have a page of notes here. I can

11 give it to the court reporter.

12 Q Perfect. Is that the only page of notes

13 you ever made?

14 A Yes.

15 MR. G: Okay. We’ll mark that as

16 P’ next exhibit, and I have no other

17 questions.

18 THE WITNESS: Okay.

19 (Examination concluded at 4:36 p.m.)

20 (J Deposition Exhibits Nos. 1 and

21 2 were marked by the reporter.)

1 STATE OF MARYLAND)

) ss

2 COUNTY OF BALTIMORE)

3 I, S M. Wright, a Notary Public in and

4 for the County and State aforesaid, duly commissioned

5 and qualified, do hereby certify that the above named,

6 M V. J, M.D., was by me first duly sworn

7 to testify the truth, the whole truth, and nothing but

8 the truth, and that his deposition as set forth above,

9 which was reduced to writing under my direction and

10 control, is a true record of the testimony given and/or

11 as corrected by said witness.

12 I certify that I am not of counsel,

13 attorney, or relative of any party, or otherwise

14 interested in the event of this suit.

15 In witness whereof I have hereunto set my

16 hand and affixed my notarial seal this 19th day of

17 September 2001.

18 _____________________

S M. Wright

19 Notary Public

20 My commission expires:

21 July 1, 2003.

1 INDEX

3 WITNESS EXAMINATION BY PAGE

4 M V. J Mr. G 3

5 Mr. K 43

6 Mr. G 50

8 EXHIBITS

9 NUMBER PAGE DESCRIPTION

10 1 50 Curriculum Vitae

11 2 50 Dr. J’s

page of notes

brain damage case in Maryland (4/5)

admin — Thu, 05 Jun 2008 11:30:20 +0000

1 with a reasonable degree of medical probability,

2 correct?

3 A Well, you mean how long it was? No.

4 Q How many times it was low. You do not know

5 with a reasonable degree of medical probability,

6 correct?

7 A Well, I’d have to — I haven’t reviewed the

8 ultrasound itself, so I’d have to go to that to find

9 out, but –

10 Q You could do that. I’m not prohibiting you

11 from looking at anything you want now, sir.

12 A Well, I don’t think I could interpret it

13 very well.

14 Q Okay. Do you know, sir — this 68 to 87,

15 do you know when either number occurred first between

16 11:38 and 12:06?

17 A No.

18 Q Do you know, sir, if either number was

19 associated with a deceleration as opposed to a

20 bradycardic period?

21 A I’m not sure what you mean.

1 Q You do know the difference between a

2 deceleration and bradycardia, don’t you?

3 A No. What do you mean?

4 Q A deceleration, as you’ve testified in many

5 other cases, is where the fetal heart rate goes down,

6 and then comes back up to baseline. A bradycardia, as

7 you have testified in other cases, is where the fetal

8 heart rate goes down and stays down.

9 MR. J: Objection.

10 Q Using those definitions that you’ve given

11 in prior depositions, do you know if the 68 or 87 here

12 was part of a deceleration or a bradycardia?

13 MR. K: This is Jk. Objection

14 to form.

15 MR. J: Objection also.

16 A Well, it was clearly bradycardia. You mean

17 whether it was associated with a uterine contracture –

18 contraction?

19 Q Well, decelerations are associated with

20 uterine contractions, that’s correct. If you need that

21 information, do you know whether the 68 or 87 was

1 associated with a contraction or bradycardia?

2 A Well, I would call it bradycardia because

3 the levels were so low. I’m not sure I’d make that

4 distinction between bradycardia and deceleration.

5 Q Okay. Now that I’ve explained what a

6 deceleration is, are you familiar with the term

7 deceleration of the fetal heart rate?

8 A Yeah. Well, I guess what you’re saying, a

9 mild — a mild decrease in heart rate would be a

10 deceleration. I think if it went this low, you’d still

11 call it a bradycardia.

12 Q Okay. Do you know, after the heart rate

13 went to 68 or 87, whether or not the heart rate went

14 back to baseline?

15 MR. J: While in ultrasound, Z?

16 MR. G: Yes, sir.

17 MR. J: Okay. Thank you.

18 A No, I’m not sure.

19 Q And you also don’t know with a reasonable

20 degree of medical probability, correct?

21 A Yeah, that would be the same. I think

1 “don’t know” you can translate as not reasonable

2 medical probability.

3 Q And, sir, assuming even hypothetically the

4 68 or 87 is part of a deceleration, you would not know

5 if it’s part of an early variable or late deceleration,

6 correct?

7 A I don’t think it — you’re making a useful

8 distinction. I think it’s bradycardia.

9 Q Do you know what obstetricians would use as

10 the definition for bradycardia?

11 A I would say below — below a heart rate of

12 a hundred.

13 Q And do you know how long the heart rate has

14 to stay below a hundred under the obstetrician’s

15 definition before it can be called a bradycardia?

16 A No, I don’t.

17 Q You mention in your report at the bottom,

18 “Although the slow heart rate and placenta previa

19 indicate that the threshold for injury had been

20 surpassed at the time of the ultrasound, I have no

21 information about how long before the ultrasound this

1 had occurred.” Do you see that? Do you see that?

2 A Okay. Yeah. Surpassed –

3 Q You’re still reading? I’m sorry.

4 A “No information about how long before the

5 ultra-” – right. In other words, whether previous

6 episodes had also changed the cerebral blood flow.

7 Q Right. Now, when you mention that

8 sentence. “… the slow heart rate and placenta previa

9 indicate the threshold for injury had been

10 surpassed…,” what is it about the placenta previa, if

11 we dissect that out, indicates to you that a threshold

12 for injury has been surpassed?

13 A Well, I think it’s really the placenta

14 previa associated with the abruption that was noticed.

15 Q Why didn’t you mention the word “abruption”

16 in your report at all?

17 A I don’t know. It’s on the — it’s on the

18 ultrasound report. I’m not sure why I didn’t put that

19 in.

20 Q Okay. Are you saying basically when

21 there’s an abruption involved that a threshold for

1 injury is surpassed?

2 MR. J: In and of itself we’re

3 asking?

4 Q In and of itself. Or is it really the slow

5 heart rate that tells you the threshold for injury has

6 been surpassed?

7 A Yeah, I think it’s a combination of the

8 abruption with bradycardia.

9 Q Okay. Well, I’d like to isolate out the

10 abruption. What does an abruption tell you at all

11 about a threshold for injury being surpassed?

12 A Well, the abruption tells you that there’s

13 a potential for blood loss from the fetus, and the

14 bradycardia indicates that that blood loss probably has

15 been physiologically significant for the fetus. So

16 it’s really the combination.

17 Q Now I understand. Okay. Sir, would you

18 know, is there any literature out there concerning

19 fetuses who have had bradycardias before delivery and

20 correlating that with subsequent outcome?

21 A You mean with? With abruption.

1 Q With anything.

2 A These are in prematures and –

3 Q Well, how many weeks do you think this

4 child was, sir?

5 A I think it was between 28 and 31 weeks.

6 Q Okay. Any literature out there with

7 preemies of that same gestational age suffering a low

8 heart rate, any literature out there with subsequent

9 neurological outcome?

10 A Well, I think I’d go back and explore this

11 Volpe literature indicating that fluctuations in

12 cerebral blood flow are linked to intraventricular

13 hemorrhage. And I think that there’s, you know, a

14 series of articles that his groups worked on looking at

15 the relationships between fluctuations in blood flow

16 and hemorrhage. But that’s the — you know, I think

17 the accepted mechanism of hemorrhages, fluctuations in

18 cerebral flood flow. And bradycardia is a prominent

19 cause from that. And in a premature infant like this,

20 we can assume that the cerebral circulation is pressure

21 passive. So any bradycardia in the premature infants

1 is going to be translated into reduced blood flow in

2 the infant.

3 Q Do you know of any of that Volpe literature

4 that talks about bradycardia for even a few seconds

5 causing brain damage in a subsequent infant?

6 A In a what?

7 Q Subsequently for that infant.

8 A Yeah, I think there’s — I think if you

9 follow the Volpe literature, there’s certainly

10 correlations between oscillations and cerebral flood

11 flow and bradycardia in the newborn nursery linked to

12 periventricular leukomalacia.

13 Q And in all of those articles by Volpe, and

14 even in his textbooks, isn’t it fair to say that

15 bradycardia has to last for a certain amount of time

16 before it will affect the fetus?

17 A I’m not sure of that. The main issue is

18 that the — it’s related to oscillations of blood flow,

19 ups and downs in blood flow. I don’t think there’s a

20 good connection between exactly how much time the

21 bradycardia occurs.

1 Q Okay. In all of Volpe’s literature where

2 he talks about the oscillations, wouldn’t you agree

3 that those infants who are brain damaged have multiple

4 oscillations of bradycardias and normal heart rates?

5 A Well, at least they — I’m not sure if they

6 all have multiple. They have — I’m not sure there’s a

7 good connection between exactly how many and how long

8 they last, but there is a strong link between

9 bradycardia and — and oscillations in cerebral blood

10 flow.

11 Q Do you know of a single article, sir,

12 whether it’s by Volpe or anybody else, that says just

13 one or two oscillations of heart rate to a premature

14 fetus is enough to cause neurological brain damage to

15 the extent that this fetus has?

16 A I don’t — I can’t really think of

17 literature that’s addressed that one way or the other.

18 Q You mention in your report in the middle of

19 the paragraph, “My general opinion is based on research

20 indicating that injury to the developing brain occurs

21 when a critical threshold is reached as opposed to

1 occurring incrementally in the cumulative dose-related

2 fashion.” Do you see that sentence?

3 A Yeah.

4 Q Are you referring to your own research,

5 sir?

6 A No. Well, I think my research, but other

7 research indicates that the — for example, the

8 G-F research, you withdraw blood, you

9 reinsert blood, and once you — once you’ve reached a

10 threshold of reduced blood flow, then that’s enough to

11 damage the brain.

12 Q Would your own research be included in

13 those articles you identified at the beginning of the

14 deposition from your CV?

15 A No. I just actually cited review articles

16 which are more clinical in nature. Mine is — related

17 to this topic is — is more related to — I guess I

18 don’t have anything definitely related to clinical work

19 on this topic, so I cited reviews that I wrote.

20 Q Then why did you tell me your opinion’s

21 based on your own research and others’ research,

brain damage case in Maryland (3/5)

admin — Thu, 05 Jun 2008 11:26:22 +0000

1 Q Do you use the KK stationery

2 when you write your reports?

3 A Yeah.

4 Q Who types up your reports, sir?

5 A I generally do. It depends if — if I’ve

6 seen a patient, and it’s, you know, an official — part

7 of the official seeing a patient, then it’s typed up by

8 the medical records department; otherwise, I type them.

9 I type most –

10 Q Where do you type your reports?

11 A I type them in — on my computer in my

12 office or sometimes at home.

13 Q Where did you type this report?

14 A I’m not sure.

15 Q So when you sometimes type your reports at

16 your computer at your office, are you using

17 KK resources then?

18 A Yeah, but the electricity it consumes

19 probably is minuscule. And I work long hours, so it’s

20 not as if I’m detracting from the workday. I pretty

21 much work seven days a week.

1 Q And during the workday, you’re working on

2 your medical-legal cases, correct?

3 A No. Generally I would do it at night or

4 weekends.

5 Q You work on your medical-legal cases at

6 night or on weekends?

7 A Yeah, generally.

8 Q Are those conference rooms at

9 KK available to use at night or weekends

10 if you’d want to schedule something, sir?

11 A Very seldom. You mean depositions? Would

12 you like to — you mean you’d like to schedule them at

13 night or weekends?

14 Q Sir, isn’t it a fact you’re embarrassed to

15 hold a deposition at KK even on a night or

16 a weekend?

17 A No, I’m not embarrassed at all. The –

18 it’s inconvenient, and it inconveniences other people.

19 And I say the main — if attorneys could work within a

20 definite time frame, like in a normal business day,

21 then it would be no problem, but generally — for

1 example, I have no idea as I sit here today how many

2 hours you’ll want to continue this. And if — you

3 know, it’s a way of exerting pressure. So you might

4 say, well, we’ll still be here at ten o’clock tonight,

5 and if that’s the case, then I can accommodate you, but

6 if I were at KK, there would be people

7 knocking at the door wanting to know why I was keeping

8 the conference room occupied.

9 MR. J: Okay. I want a continuing

10 objection. Z, you know, the rules in Ohio say that

11 the purpose of this deposition is really to discover

12 the facts that he’s aware of, and the opinions that he

13 holds. This hardly has anything to do with it. It’s

14 more appropriate for cross-examination at court, if at

15 all. So you’re sort of out of the bounds of what the

16 nature of this discovery process is in the state of

17 Ohio. I know you’re in Israel, and that you practice

18 also out of Baltimore, but maybe the rules are a little

19 different.

20 MR. G: Well, we’re about to wrap

21 this up, but I do have a couple other questions based

1 on what the doctor said.

2 Q Doctor, you just announced you don’t know

3 how long this deposition is going to be, correct?

4 A Right. You could — you could go on

5 forever, and you might well as far as I know.

6 Q Sir, I have deposed you over a dozen times.

7 Isn’t it fair you know the deposition has never gone

8 beyond two hours?

9 A Yeah, it could be, I think, but you have a

10 certain –

11 MR. J: Okay. You don’t have to

12 argue with this. That’s a rhetorical question. Let’s

13 just get to the meat of the case if we could, please.

14 Q Okay. Sir, did you tell defense counsel

15 when you sent them the articles in the December 27th

16 letter and by fax in February 2001 not to forward those

17 articles to p’ counsel?

18 A No.

19 MR. J: Let the record show I’m not

20 required to turn over articles I get to you. I’m

21 required to turn over the report that I get. In Ohio,

1 I don’t know what the rule is here.

2 MR. G: Well, we’re going to have to

3 debate that, because if he sent the articles the same

4 time as the report, I think you have an obligation to

5 send it over. And certainly we were taken by surprise

6 by those two articles.

7 MR. J: Oh, baloney. You know those

8 articles, number one. Number 2, they weren’t sent at

9 the same time as it appears now that we look at the

10 fax, and they were sent to my nurse for informational

11 purposes. So, you know, let’s get on with this.

12 Q Sir, from your report, it appears that

13 Mr. J had asked you a question concerning the

14 contribution of the interval when Dr. P was involved

15 in the case to the child’s neurological condition,

16 correct?

17 A Yes.

18 Q Now, you mentioned in your report you’ve

19 given some thought to the question. How much time of

20 these six hours that you reviewed all the material in

21 this case you told me about did you give some thought

1 to that question?

2 A I would say — I would say that most of

3 those six hours were occupied with thought about this

4 general question.

5 Q Okay. I’d like to test your understanding

6 of the facts of this case since you’re giving an

7 opinion about Dr. P’s involvement. When did

8 Dr. P first get involved with this child, what time?

9 A I’m not sure of the exact time, but I know

10 that the — I think the patient went to ultrasound

11 around 11:33, and I think the ultrasound itself took

12 from about 11:38 to 12:06. And then Dr. P then I

13 know gave a wet reading and wrote that down and sent

14 that back to the floor with the patient, and I think

15 the patient reached the floor about 12:51.

16 Q Are you finished your answer?

17 A Yes.

18 Q Okay. So would it be fair to say you do

19 not know exactly the time Dr. P was involved with

20 this patient?

21 A Right. You mean the exact time he was

1 involved? No. I just know the time that the

2 ultrasound was being done in the radiology department.

3 Q Okay. So as best you can say, Dr. P

4 first became involved with the patient sometime after

5 12:06, and ended his involvement sometime before 12:51,

6 correct?

7 A Well, I don’t know that — I don’t know if

8 he was involved before the ultrasound was being done,

9 but I know that certainly after it was done, he was

10 involved with interpreting it. And, presumably, he was

11 over — he was finished by 12:51.

12 Q Okay. So you don’t even know a range of

13 time when Dr. P was first involved, whether it was

14 before 12:06 or first after 12:06, correct?

15 A Right.

16 Q Okay. Concerning the time of the placenta

17 previa and slow heart rate, what time was the placenta

18 previa and slow heart rate documented on the

19 ultrasound, in your opinion?

20 A That was between 11:38 and 12:06.

21 Q And you can’t do any better than that, can

1 you?

2 A That’s as good as I can do, yeah.

3 Q Okay. Tell me, sir, based upon your

4 understanding of the facts, how long was the slow heart

5 rate present?

6 A I’m not sure exactly how long it was.

7 Q Well, you know you don’t have to be sure

8 about anything, but I’m sure going to pin you down

9 anyways. How about with a reasonable degree of medical

10 probability, how long was that slow heart rate low?

11 MR. K: I just want to object and move

12 to strike some of the comments that are made before the

13 questions.

14 Q You can answer.

15 (Discussion was held off the record.)

16 Q Sir, the question is, in your opinion, to a

17 reasonable degree of medical probability, how long was

18 that slow heart rate?

19 A Well, I’m not sure exactly how long it was.

20 I wouldn’t want to — want to guess.

21 Q And you don’t want to give an answer with a

1 reasonable degree of medical probability either,

2 correct?

3 A Yeah. I mean, if I’m not sure, I don’t

4 think I should. I know it was documented that the

5 heart rate was very low.

6 Q Okay. You do understand, though, when you

7 give medical-legal depositions, you don’t have to be

8 sure about anything; you just have to hold opinions to

9 a reasonable degree of medical probability, correct?

10 A Right. Well, we know through a reasonable

11 degree of medical probability that the heart rate was

12 very slow, was documented to be slow.

13 Q Okay. Even though you have no idea how

14 long a period of time the heart rate was low, do you at

15 least know the number of the low heart rate?

16 A It was between 68 and 87.

17 Q Do you know, sir, within a reasonable

18 degree of medical probability, how many times was the

19 heart rate documented to be low?

20 A No, I’m not sure.

21 Q And, again, you don’t have — know even

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1 Q – list for me the other material you were

2 sent to review in connection with this case.

3 A Okay. I got a report from Dr. Gatewood. A

4 report from Dr. K. A report from IB. I

5 also have reports from Dr.l, F, F,

6 G, and Nurse C. I looked at

7 Dr. H’s deposition. And let’s see. I looked

8 at — this is Dr. — let’s see. I had that one, I

9 think. P. I think I looked at S, P.

10 March 15th. Okay. No, I don’t –

11 Q Is that it?

12 A Let’s see. Yeah, I already said that. No,

13 I think that’s it.

14 Q Did this — all the material that you were

15 ever sent in this case come with any cover letters from

16 defense counsel?

17 A Yeah, I think it probably did, but I don’t

18 have them. Oh, I have two of them. I have — I have

19 one dated February 21st, 2001 with the reportsl,

20 F, F, and I have another cover letter with

21 reports of Gatewood, K and B. The rest of

1 them I don’t have.

2 Q Where are the rest of the letters?

3 A Probably lost.

4 Q How could you lose letters you were sent in

5 connection with this case?

6 A It’s easy.

7 Q Did you lose anything in this case you were

8 sent, other than the cover letters from defense

9 counsel?

10 A Not that I can remember.

11 Q Do you know when you lost the cover letters

12 from defense counsel?

13 A No.

14 Q Has this happened in other cases that

15 you’ve reviewed for defense counsel, things get lost?

16 Do you recall?

17 A I would say yeah, things get lost probably

18 about 75 percent of the time.

19 Q And would you agree with me that it’s only

20 cover letters from defense counsel that get lost each

21 time?

1 A No. I think it’s equally distributed

2 between defense and plaintiff.

3 Q Well, what percentage of p’ work

4 do you do, sir?

5 A It’s about 20 percent.

6 Q Do you do any p’ work in the state

7 of Maryland?

8 A Sure.

9 Q When was the last time you testified in the

10 state of Maryland that a delay in delivery caused brain

11 damage to a baby?

12 A I probably never have really testified.

13 That sounds like more of a standard-of-care issue. I’m

14 more related to causation, you know, when it occurred.

15 Q Right. When have you ever testified in

16 Maryland that the cause of a baby’s brain damage was a

17 delay in delivery, or, putting it another way, that an

18 earlier delivery would have avoided brain damage?

19 A Well, I don’t think I’ve testified very

20 often at all throughout the years. It’s not — I

21 testify about, you know, the mode of injury, but –

1 Q Okay.

2 A – the timing of delivery would be

3 something for the obstetrician.

4 Q When have you ever testified outside the

5 state of Maryland that an earlier delivery would have

6 avoided brain damage in a baby, or, putting it another

7 way, that having the baby delivered at the time the

8 baby was delivered is what the cause of the brain

9 damage was?

10 A I’m not sure I’ve ever testified one way or

11 the other. The — I don’t really testify about

12 delivery very often. It’s more the cause — the cause

13 and timing of the brain injury.

14 Q Sir, isn’t it a fact on many occasions in

15 defense cases, you have testified that an earlier

16 delivery would not make a difference, because the cause

17 of the baby’s brain damage occurred well before the

18 labor and delivery process?

19 A Well, the primary focus would be on the

20 cause and timing of the injury, not so much on the mode

21 of delivery.

1 Q Right. I know that. And wouldn’t you

2 agree with me that many times you’ve testified that the

3 timing of the cause of the baby’s brain damage was

4 before the labor and delivery process?

5 A All right. That’s true about 80 percent of

6 the time, as you know.

7 Q I’m asking you. When you testified, you’ve

8 testified to that on many occasions, correct?

9 A I don’t know. I think we’re going nowhere.

10 Q Well, that’s because you don’t want to

11 answer the question. I’m going to ask until I get a

12 responsive answer.

13 MR. J: Objection.

14 Q Isn’t it fair, sir, that you’ve testified

15 that the cause of a baby’s brain damage has occurred

16 before the labor and delivery process?

17 A Sometimes, yeah, but I don’t know how many.

18 Q Okay. And the opposite of that, isn’t it

19 fair to say you’ve never testified that the timing of a

20 cause of a baby’s brain damage occurred during a labor

21 and delivery process?

1 A Yeah, I’ve testified on that on numerous

2 occasions, sure.

3 Q Oh, okay. Can you list for me any of those

4 numerous occasions where you’ve testified that the

5 timing of a baby’s brain damage occurred during a labor

6 and delivery process?

7 A I’ll name one, but I’m not going to give

8 you a long list. I’ve testified — I testified in

9 Dayton, Ohio about nine months ago that the cause of

10 the brain injury was forceps delivery.

11 Q Who’s the plaintiff’s attorney?

12 A Greg Gibson.

13 Q And that was nine months ago, correct?

14 A Yeah.

15 Q Okay. Sir, how much time have you spent

16 looking at all this material and talking to the

17 attorneys?

18 A Probably about six hours.

20 attorneys before?

21 A One time, yeah. I think I gave a

1 deposition a couple years ago.

2 MR. J: I was –

3 Q Do you remember the name of that case?

4 MR. J: Just to correct that, I

5 wasn’t working with you. There was some other defense

6 counsel from another law firm on that case. I just

7 happened to be –

8 THE WITNESS: But this firm I think was –

9 MR. J: I was a co-defendant in that

10 case.

11 THE WITNESS: Yeah.

12 A There was at least one other time, this

13 W, H firm, because I remember the stationery.

14 It’s got the Terminal Tower on the front. You want –

15 Q Do you remember the name of the case, is

16 the question?

17 A No.

18 Q In that case, were you testifying about the

19 cause of the timing of a baby’s injury?

20 A Most likely, yeah.

21 Q Did you give a deposition where you are

1 giving a deposition today?

2 MR. J: Excuse me? I don’t

3 understand.

4 A You mean in the same court reporter –

5 Q Yes.

6 A Probably, yeah.

7 Q Okay. Are there any conference rooms at

8 the KKInstitute?

9 A Yeah.

10 Q How many people can fit in a conference

11 room at the KK Institute?

12 A It depends. There’s one that you can

13 probably fit about 60 people in, and others about a

14 dozen.

15 Q And is there more than two conference rooms

16 at the KK?

17 A I think probably altogether there are about

18 eight.

19 Q Okay. Are they packed all hours of the

20 day?

21 A Pretty much.

1 Q Do you ever schedule things in those

2 conference rooms?

3 A Sometimes.

4 MR. J: I’m going to object to this

5 line of questioning. Go ahead.

6 A Well, you’d like to learn –

7 KK Institute, you might want to make a

8 donation.

9 Yeah, they’re packed. We have a hundred

10 thousand patient visits a year. We have 350 children

11 in our school. Fifteen hundred people work there. So

12 it’s — it’s a busy place.

13 Q The question is, do you ever schedule

14 things during any of those conference rooms?

15 A Yeah, sure. When it’s business or

16 teaching, sure.

17 Q Okay. Well, you do schedule visits there.

18 Why don’t you ever schedule a deposition at the

19 KK Institute?

20 A Well, I think it’s — it’s not really

21 official KK business. I think it would be

brain damage case in Maryland (1/5)

admin — Thu, 05 Jun 2008 11:17:41 +0000

1 IN THE COURT OF COMMON PLEAS

LORAIN COUNTY, OHIO

3 TLG, Minor *

by her parent and next

4 friend, D K. G, * Case No.

5 *

6 vs. * Judge Bettloski

7 M F. S, M.D., *

et al

8 Defendant *

9 * * * * *

10 Telephonic deposition of M V.

11 J, M.D., taken on behalf of the P,

12 before S M. Wright, a Notary Public in and for

13 the State of Maryland, County of Baltimore, at 200 East

14 Lexington Street, Suite 1700, Baltimore, Maryland

15 21202, at 3:40 p.m., September 6, 2001.

16 * * * * *

APPEARANCES:

Z.G, Esquire (via telephone)

18 On behalf of P

19 J W. J, Esquire

On behalf of Defendants,

20 Russell, Berkebile & Associates

21 Reported By: S M. Wright

1 APPEARANCES: (Cont’d)

G.R, Esquire (via telephone)

3 On behalf of Defendant,

Dr. P.H

J.K, Esquire (via telephone)

5 On behalf of Defendant,

Dr. M F. S

7 W.F, Esquire (via telephone)

On behalf of Defendant,

8 Community Health Partners Hospital

1 * * * * *

2 MV. J, M.D.,

3 called as a witness and having been duly sworn,

4 testified as follows:

5 EXAMINATION BY MR. G:

6 Q Doctor, can you give us your name and

7 address for the record, please?

8 A It’s Dr. M V. J –

9 J. And my work address is 707 North

10 Broadway, Baltimore, Maryland 21205.

11 Q Doctor, as you know, my name is Z

12 G. I’m one of the attorneys for the p

13 in this case. I’m going to be asking you a series of

14 questions. If at any time you do not understand one of

15 my questions, please tell me so, or ask me to rephrase

16 it. If you do answer, though, I’ll assume you

17 understood the question, and I’ll hold you to your

18 answer. Do you understand?

19 A Okay.

20 Q Great. Do you have a copy of your

21 curriculum vitae in front of you?

1 A Yes.

2 Q We’ll mark that a Plaintiff’s Exhibit

3 Number 1 at the end of the deposition.

4 Doctor, can you either circle or indicate

5 with a check mark on there any articles that you’ve

6 written, or chapters or abstracts, what have you, that

7 pertain to your opinions in this case?

8 A Okay.

9 MR. J: That will take awhile.

10 There’s so many.

11 MR. G: You wish.

12 MR. J: I meant looking at it.

13 A Okay. I’ll take a few minutes. You want

14 to take a few minutes now, or –

15 Q Whatever you’d like, that’s fine with me.

16 MR. J: Yeah, go ahead and do it.

17 A Okay. Okay.

18 MR. J: Z, just so you know, and

19 everybody else, he just circled article 51 on page 26

20 of his CV.

21 MR. G: Okay.

1 A And 58 on twenty — page 26. And then I

2 guess 61, page 27. And then 63 on page 27. And 72 on

3 page 27.

4 MR. J: Pardon me?

5 THE WITNESS: Seventy-two.

6 MR. J: Okay.

7 A And those are the — those are the ones

8 that are relevant.

9 Q Great. Do you have a copy of your report,

10 the December 27th report, in front of you?

11 A Let’s see. Yeah.

12 Q Can you list for me the material you

13 reviewed in connection with this case before you wrote

14 your report?

15 A Okay. Here I have it, yeah. I looked at

16 the records from Community Health Partners, including

17 the newborn and maternal records. I looked at the

18 Metro Health Medical records, including progress notes,

19 labs, radiology and special diagnostics. Outpatient

20 records from Metro Health Center. I looked at the

21 depositions of both parents, deposition of Dr. S,

1 deposition of Dr. H, deposition of Dr. P. I

2 looked at brain images. I looked at ultrasound from

3 September 15th. I looked at MRI scan from September

4 18th. I looked at ultrasound from September 21st, an

5 ultrasound from September 27th. I looked at ultrasound

6 from October 10th. I looked at a CT scan from March

7 11th, 1999. The other films are all 1998.

8 Q Okay. Did you look at anything else before

9 you wrote your report of December 27th?

10 A I don’t think so.

11 Q Medical articles? Chapters in textbooks?

12 Medline Search?

13 A The only — I think when I sent the letter,

14 I sent along an abstract from a Volpe article, Annals

15 of Neurology, 1989, January, pages 3 to 11 called

16 “Intraventricular Hemorrhage in the Premature Infant,

17 Current Concepts,” Part I. I also sent along abstracts

18 of an article from Pediatric Research, 1984, January,

19 Volume 18, pages 7 to 11 called “Cerebral Blood Flow

20 and Experimental Intraventricular Hemorrhage” by

21 G-F. G, F

1 M — M.

2 Q Did you send along any other articles with

3 your report aside from the two you just mentioned?

4 A No.

5 Q Why didn’t you cite those two articles in

6 your report?

7 A I’m not sure.

8 Q Did you review any more than the two

9 articles and just decide to send those two along?

10 A No. I think these were just — these

11 supported my position, so I didn’t review any others.

12 Q Did you discuss these two articles with

13 defense counsel before you sent them to him?

14 MR. J: Objection. Go ahead.

15 A I think — no. I think what the sequence

16 was, I talked about my opinions on the phone, and then

17 I wrote the letter, and then I just — I mean, there

18 are many articles that document the same point, but I

19 just picked these two as examples and sent them along.

20 Q What did you expect defense counsel would

21 do with these two articles?

1 A I thought they would read them, and that

2 they would see that the words in them corresponded to

3 my opinion that the premature infant is vulnerable to

4 intracranial hemorrhage related to hypotension,

5 especially hypotension related to hypovolemia.

6 For example, the article by

7 G-F documented in animals that five

8 minutes of hemorrhagic hypotension was associated with

9 intracranial hemorrhage. And Volpe indicated in humans

10 that abrupt increases and decreases in cerebral blood

11 flow in the premature are related to intracranial

12 hemorrhage.

13 And since this baby had — was very

14 premature and had a documented episode of bradycardia,

15 these articles supported the position that that episode

16 was probably related to the baby’s brain injury and

17 intracranial hemorrhage.

18 Q Did you write any other letters to defense

19 counsel?

20 A I don’t think so.

21 Q Have you ever passed along medical articles

1 to defense counsel before?

2 A I’ve passed them along both to plaintiff

3 and defense counsel.

4 Q And when you’ve done such, don’t you have a

5 cover letter, Dear Attorney: Enclosed you’ll find

6 articles you may find helpful?

7 A I faxed these. This was faxed on –

8 actually, it was — looks like these were faxed

9 recently. February 9th, 2001 to Jo E L–

10 L-E-A-C-H, fax number 216-621-8369.

11 Q So that when you told me earlier the

12 articles went along with your report, you were in

13 error, correct?

14 MR. J: Objection. That doesn’t

15 follow at all.

16 A I’m not sure, but –

17 Q Well, is it now your testimony, sir, that

18 you sent the articles along with the December 27th

19 letter, and, in addition to that, faxed them in

20 February 2001?

21 A I don’t know. It looks like — it looks

1 like these were faxed independently.

2 Q Meaning?

3 A You mean in the same envelope as the

4 letter?

5 Q Did they go in the letter or not? Do you

6 want to change your testimony, or stick with your

7 earlier testimony?

8 MR. J: Objection.

9 A No, I don’t think I’ll do either one. I’ll

10 just tell you what I have that I faxed them on February

11 9th, 2001.

12 Q After the December 27th report, were you

13 provided with any other material to review in

14 connection with this case?

15 A Yeah. I have other — other reports. I

16 have expert reports.

17 MR. J: He’s asking at the time, I

18 think, as opposed to subsequent to your report.

19 MR. G: No.

20 Q Subsequent. After December 27th –

21 MR. J: Okay.

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100

1 Q. Okay. You mentioned earlier that since, I

2 think, ‘88 physicians have the option to use an

3 electronic fetal monitor or to auscultate every 15

4 minutes even in high-risk patients; is that correct?

5 A. Yes, that’s correct.

6 Q. Assume hypothetically a physician chooses

7 Option A, to use electronic fetal monitoring. Does a

8 nurse — is a nurse allowed under the applicable

9 standard of care to look at that monitor once every 15

10 minutes as if she was auscultating?

11 A. If a patient is in labor, that is — that

12 is true — as if she was auscultating. That’s how the

13 standard is written.

14 Q. Okay. When this parent, Ms. K., was

15 admitted to V.University Medical Center, were

16 you at all involved in her treatment?

17 A. No, I was not. It was one of my partners.

18 Q. Thomas Wheeler?

19 A. Correct.

20 Q. Did you discuss this case with Dr. Wheeler

21 when Ms. K. was an inpatient?

22 A. No, I did not.

23 Q. Did you know of her when she was an

24 inpatient?

25 A. No, I did not.

101

1 Q. When did you first learn that your partner

2 treated Ms. K.?

3 A. When the medical records were sent to me, I

4 saw that Dr. D. had called Dr. Wheeler for transfer

5 so the mother could be with the baby. That was the

6 first time.

7 Q. Okay. And, of course, you’ve never

8 discussed this case with Dr. Wheeler; correct?

9 A. Correct.

10 Q. If hypothetically I had sent you a case

11 where I was suing Dr. D. — say even in another

12 case –

13 A. Uh-huh.

14 Q. – would you be willing to review the

15 records and give me an objective opinion about the

16 case?

17 A. No.

18 Q. Why not?

19 A. Well, you live in Israel. I mean, it’s so

20 far away — no.

21 I have made it a policy, Mr. Gershon, that

22 I do not take plaintiff cases for physicians who refer

23 to Vanderbilt. Because of my unique position here as

24 Director of Maternal-Fetal Medicine representing

25 Vanderbilt, I find it difficult to testify against

102

1 physicians who call me up on the phone and tell me

2 exactly what’s going on and then send their patients to

3 me for management or consultation.

4 I think it’s — it would impede transfer of

5 these patients to us. It would set up a situation that

6 was very controversial or contentious. And I don’t

7 think it’s good politics, and I don’t think it helps

8 patients.

9 My job is to educate these doctors. If

10 they want to admit that they may have done something

11 wrong or they ask if they could have done something

12 differently and they speak openly and honestly with me,

13 I don’t want them ever to think that I will turn around

14 and use that against them.

15 So as a policy ever since I started

16 reviewing cases for lawyers since 1981, I have not

17 taken cases that fall into my catchment area, which is

18 the state of A., northern Alabama, and southern

19 K.. And …and Dr. D. are in that

20 catchment area.

21 Q. You would agree that a physician, when they

22 serve as a medical expert, needs to be completely

23 objective?

24 A. Oh, absolutely.

25 Q. Do you believe that you can be completely

103

1 objective and unbiased when you review a case on behalf

2 of a physician that you have a professional

3 relationship with such as Dr. D.?

4 A. Sure. And I have done that and talked to

5 many attorneys and said that I would be unable to help

6 even though these were colleagues of mine or even in

7 some instances — well, colleagues — colleagues that I

8 work with side by side.

9 I have told attorneys that I cannot help

10 them if they have a significant problem. I feel like I

11 can be very objective.

12 Q. Would you agree with me, sir, that when you

13 have a relationship established with a health care

14 provider that, if nothing else, you’re gonna give the

15 health care provider the benefit of a doubt?

16 A. Well, I think I have written in a paper –

17 and maybe this is where you get the words — that when

18 there’s dispute that the patient says one thing

19 happened, the doctor says the other, or the nurse says

20 the other, if it — if it is consistent with what I

21 would expect the health care provider to do under

22 similar circumstances, I’ll give the health care

23 provider the doubt — the benefit of the doubt.

24 But as far as any other circumstance, I

25 don’t give anybody the benefit of the doubt and assume

104

1 that just because I have a collegial relationship that

2 I’m gonna say something that is dishonest or

3 misrepresents the case just for the defense. I don’t

4 feel that’s my job, and it’s something that I work very

5 hard at not doing.

6 Q. Do you believe the nurses at V.are

7 trained to call you or not to call you as you believe

8 the standard of care existed in this particular case

9 for the nurses when to call Dr. D. or when not to?

10 A. I think the nurses here at Vanderbilt

11 represent a little bit of a different group of nurses

12 inasmuch as they’ve got chief residents and an

13 attending in the hospital constantly, and sometimes

14 they’ll run it by another physician before they call

15 me. So in that sense it’s a little different.

16 But assuming that it’s — that there are no

17 differences in who’s at the hospital, I think when the

18 nurses called Dr. D. they were calling at the

19 appropriate time. While I would have no problem if

20 they wanted to call earlier, that would have been fine

21 too. But I think as far as standard of care at

22 V.or at …that they acted

23 appropriately.

24 Q. Does your hospital have policies and

25 procedures on when nurses should call the doctor, when

105

1 they shouldn’t call the doctor, that would be

2 consistent with your testimony today?

3 A. You know, I haven’t looked at our policies

4 and protocols in a long time. It might. I have

5 forgotten exactly the wording. So I have to plead that

6 I haven’t read it in such a long time that I don’t know

7 exactly how it’s worded. Certainly –

8 Q. Were you involved in the formulation of the

9 policies of when nurses should and shouldn’t call

10 doctors at your hospital?

11 A. Inasmuch as the nurses that run labor and

12 delivery will write them down. We have nurse

13 practitioners and others that spend a considerable

14 amount of time doing this. And then they give them to

15 me, and then I read them and approve them. I didn’t

16 actually write them. I may have changed a few

17 sentences or added or deleted a few things and then

18 eventually signed off on them.

19 I just, as we sit here, can’t cite line and

20 verse to answer that question.

21 Q. Okay. How difficult would it be for you to

22 obtain the policies and procedures for nurses, when

23 they should call doctors, that existed in your

24 institution that you approved, say, in 1996 when this

25 case was going on?

106

1 A. Yeah, I probably could get that.

2 Q. Well, I’d ask you to please forward that to

3 Mr. R., as quickly as you could, and he’ll

4 hopefully send me a copy. Would that be okay?

5 A. Yes, it would.

6 MR. R.: That’s fine.

7 BY MR. GERSHON:

8 Q. Sir, is there anything else about standard

9 of care for the nurses that you intend to render

10 opinions about that I haven’t covered?

11 A. I don’t believe so.

12 Q. Are there any other areas that you’re going

13 to be defending the hospital in that we haven’t touched

14 upon?

15 A. I don’t believe so.

16 Q. Okay. I thank you very much for your time.

17 I don’t have any other questions.

18 THE WITNESS: Thank you.

19 MR. R.: Thanks.

20 (Proceedings adjourned at

21 1:15 p.m.)

107

1 REPORTER’S CERTIFICATE

2 STATE OF A. )

3 COUNTY OF DAVIDSON )

4 I, Patricia W. Smith, Registered

5 Professional Reporter, with offices in N.,

6 A., hereby certify that I reported the foregoing

7 proceedings at the time and place set forth in the

8 caption thereof; that the proceedings were

9 stenographically reported by me; and that the foregoing

10 proceedings constitute a true and correct transcript of

11 said proceedings to the best of my ability.

12 I FURTHER CERTIFY that I am not

13 related to any of the parties named herein, nor their

14 counsel, and have no interest, financial or otherwise,

15 in the outcome or events of this action.

16 IN WITNESS WHEREOF, I have hereunto

17 affixed my official signature and seal of office this

18 12th day of March, 1999.

PATRICIA W. SMITH,

22 REGISTERED PROFESSIONAL REPORTER

AND NOTARY PUBLIC FOR THE STATE

23 OF A. AT LARGE

24 My Commission Expires:

CP Deposition part 2 (10/11)

admin — Mon, 10 Mar 2008 10:38:03 +0000

1 A. Well, of course. We all do. But I’m

2 saying that I don’t think it plays a role in etiology

3 here or — or in management to the extent that it would

4 be — it would prevent a problem. I think we do it

5 because it makes some common sense. We might raise the

6 fetal PO2 one or two points. But we’re not going to

7 take a sick fetus and make it well by giving the mother

8 oxygen.

9 Q. It sounds like what you’re saying, sir, in

10 panel 13666, the standard of care for a reasonably

11 prudent nurse didn’t even require her to give the

12 patient oxygen or put her on her side; correct?

13 A. Well, I think at 13666 for the first time

14 we have reduced variability. And I think it’s a good

15 thing for the nurse to put the patient on her side,

16 promote blood flow, and give oxygen, just in case there

17 is some diminished oxygenation of the fetus at that

18 time.

19 But as far as strict standard of care, no,

20 she’s not in labor. Her cervix hadn’t changed. The

21 heart rate really hasn’t demonstrated any significant

22 patterns. There’s no bradycardia that we know of. So

23 I think by standard of care she probably didn’t have to

24 do that, but I think it was a good idea. I just don’t

25 think it makes the difference between a baby that is

1 gonna be born healthy and a baby that’s gonna be born

2 sick.

3 Q. That’s fine. We’re just sticking, though,

4 to standard of care now.

5 A. Right.

6 Q. What about that panel, sir, in 13666, do

7 you think made it a good idea, although it wasn’t a

8 standard of care?

9 A. Well, they were having trouble once again

10 establishing heart rate. There was an area where it

11 looked like the heart rate might have been going down.

12 Q. Where is that?

13 A. If you look at pattern — if you look at

14 panel 13665 –

15 Q. Yes, sir.

16 A. – do you see how it looks as if the heart

17 rate is just starting to go down? There’s a little

18 gap, and then it’s down around 70?

19 Q. Okay.

20 A. I think that’s what promoted the nurses to

21 do what they did.

22 Q. Now, sir, is that different than any of the

23 places between midnight and 12:30 which looks similar

24 to that, where the heart rate is up at 180 and then

25 it’s down after a gap?

1 A. Well, there’s nothing that looks as if it

2 is heading downward as you have in the case I just

3 described. What you have is a monitor that looks like

4 it’s searching for the heart rate. So in that sense

5 it’s different.

6 Q. Is this the type of thing between twelve

7 midnight and 12:30 that it’s not a standard of care to

8 put the patient on their side or give them oxygen but

9 it would be a good thing to do?

10 A. Well, if they go to the side, they may have

11 more trouble getting the heart rate. It couldn’t hurt.

12 Oxygen could have been given at midnight. I just don’t

13 think it plays a role in anything here, whether it’s

14 linked to the problem or standard-of-care principles.

15 I mean, I look at this case as a 34-weeker

16 who came in with premature labor, attempts were made to

17 stop. Around midnight the heart rate, which had been

18 relatively easy to follow, was becoming more

19 problematic. And within — within less than two hours

20 the patient had been delivered by a very rapid cesarean

21 section, based on the fact that the nurses were having

22 trouble and because of the concern that it was more and

23 more difficult to monitor the fetal heart rate.

24 I know we have a bad outcome here. I know

25 this child died. Obviously, the birth had significant

1 oxygen problems at the time of birth, considering the

2 outcome. But I still don’t believe that any departure

3 from the standard of care occurred by the nurses taking

4 care of Ms. K..

5 Q. Sir, do you know what the pH was at birth

6 of the baby or the cord pH or –

7 A. No, I don’t. I know the first pH, but they

8 did not obtain a cord pH.

9 Q. Do you know what hypothetically a cord pH

10 would have been had it been obtained?

11 A. Hypothetically?

12 Q. Yes, with a reasonable degree of medical

13 probability.

14 A. Well, it couldn’t have been good. I mean,

15 the first gas was 6.7. It’s not gonna be much better

16 than that.

17 So I would think it’s gonna have severe

18 acidosis at birth. That’s about all I could say.

19 Q. Do you have an opinion, sir, that you hold

20 to a reasonable degree of medical probability as to

21 when would be the last time before birth that a gas, if

22 hypothetically taken, such as a scalp pH, would have

23 been normal?

24 A. (Pause)

25 Hold on. I’m just trying to put the fetal

1 monitoring tracing in order, and I’ve — I haven’t.

2 Q. Okay.

3 A. One second.

4 Q. Okay.

5 A. I got it.

6 On a more-likely-than-not basis, I think

7 that objectively the last time that I would feel

8 comfortable with a normal pH having been possibly

9 obtained at delivery occurred — because I don’t think

10 you could do scalp sampling here — would have been at

11 the 95169 area, which is about twelve — somewhere

12 around 12:57, somewhere in there. Because you’ve got a

13 rate of 120. The variability looks moderate to me, and

14 that’s right as it’s starting to go downward. You

15 might have had a normal pH later, but I think here,

16 more likely than not, the pH would have been normal.

17 Q. Okay.

18 A. After that we really don’t have anything

19 very objective other than that last couple of minutes

20 before taking the patient to the delivery room — or

21 the operating room. And I just can’t really say much

22 about that.

23 Q. Now, does that normal pH that you told me

24 about, the one o’clock or 12:57, indicate also that the

25 fetus is without hypoxemia?

1 A. No. Hypoxemia is not a — is not a very

2 pejorative term. You know, you and I can hold our

3 breath and become hypoxemic. It’s tissue hypoxia would

4 be a better way for me to answer the question.

5 Q. Okay. Same question with the word “tissue

6 hypoxia.”

7 A. Yeah, I don’t think there’s any tissue

8 hypoxia going on at that particular point. That’s why

9 I was able to look at the variability and make that

10 statement.

11 After that, I’m not as sure or certain and

12 I don’t know if I could say within medical reasonable

13 probability. And certainly after that is when

14 everything starts to happen and everybody starts to

15 make moves to delivery, which does occur by her coming

16 off the monitor some 28 minutes later and delivered by

17 some 46 minutes later.

18 Q. So just so I’m clear, you will not have an

19 opinion, with a reasonable degree of medical

20 probability, when between approximately one o’clock and

21 the time of birth the child first became — or had

22 tissue hypoxia?

23 A. That’s correct.

24 Q. Would you agree with me, sir, that once a

25 nonreassuring fetal heart tracing is noticed by a nurse

1 it’s necessary to find a reassuring element of fetal

2 well-being in order to allow labor to continue?

3 A. No, I really don’t. Because it’s the level

4 of nonreassuring. And that’s why I’ve never liked the

5 term; because it puts mild tachycardia with normal

6 variability in the same category as repetitive lates

7 with minimal variability. It’s just not a term I like.

8 I know that the American College of OB/GYN

9 have used it and are pushing it. This is one of these

10 areas where some of us — and I’m obviously one of

11 those included — that disagrees with using that term.

12 So there is plenty of nonreassuring fetal

13 heart tracing that the nurse does not have to alter and

14 find some reassurance — unless she’s gonna use

15 something like variability and to say despite the

16 nonreassuring pattern, as far as tachycardia or

17 repetitive decelerations, that the variability is so

18 reassuring that I’m gonna call this a normal tracing.

19 So it’s a matter of semantics moreso than

20 anything else.

21 Q. Okay. Well, I’m just asking the way you

22 would state it.

23 Do you have an opinion, with a reasonable

24 degree of medical probability, why they had problems

25 with the transducer, in your opinion, between the

1 twelve and 12:30 time or later?

2 A. I really don’t know. Usually it’s a fetus

3 that’s very active, moving around, and, therefore, the

4 beam under which its heart is being continuously

5 exposed to the ultrasound detectors is no longer able

6 to ascertain a steady heart rate. That could be one of

7 the possibilities.

8 The other is that the heart rate did have

9 some significant decelerations and by the time it came

10 back up periodically, it was difficult for the nurse

11 once again to find it.

12 Q. Prospectively can she know which of the

13 possibilities it is?

14 A. Not really. I mean, that’s the whole point

15 in searching for the heart rate, which began somewhere

16 around midnight.

17 Q. I asked you about what protocol for nurses

18 should state. I don’t know if I asked if you believe a

19 protocol should state when the nurses should call the

20 physician. In other words, in what situations?

21 A. Well, that’s relatively easy to answer.

22 The physician should be called, as a rule, when the

23 nurses believe there has been a change in status such

24 that physician input to either make a decision of

25 status quo and continue the course or to make an

1 alteration and plan of action should occur.

2 So it’s really when the nurse feels that

3 there is a change in the situation that the doctor

4 needs to be involved in so as to make a decision as to

5 whether to continue what’s going on or to take a change

6 in course of action.

7 Q. So in your definition, if a nurse doesn’t

8 know any better or doesn’t have enough education to

9 know any better and she believes everything is

10 beautiful, the standard of care would not require her

11 to call the doctor; correct?

12 A. No, that’s not true at all. It’s what is

13 actually happening. If the nurse is making a mistake

14 because of her lack of training and education and

15 background, the violation of the standard of care

16 starts when she should have made the right decision but

17 didn’t. It’s the same thing for a physician. If a

18 physician doesn’t make the decision to do a cesarean

19 section until late in the game when everyone can look

20 at the monitor strip and say it should have been made

21 30 minutes earlier, then that doctor, despite the fact

22 that he made his decision 30 minutes later, is still in

23 violation because he should have made it 30 minutes

24 earlier. It’s the same — the same parameters are at

25 work here.

CP Deposition part 2 (8/11)

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1 the heart rate in a normal pattern. So as they’re

2 searching and trying to get this baby to either lie

3 still or to find the heart in a more consistent manner,

4 they are continuously being updated with heart rates as

5 they’re searching. They may not be able to print it

6 out in a continuous fashion, but I think that they are

7 assuming that there is no bradycardia going on here and

8 that they can continue with that particular process.

9 Q. Now, what allows them to assume that, sir,

10 if when one looks at these fetal monitor strips just

11 like you see these patterns of 120s there’s also rates

12 down to 90 or below or even to 200 or above.

13 A. Well, as long as the nurses are hearing for

14 a period of time rates in the 120 — 110 to 160 range,

15 which is what they’re doing, they’re not obviously

16 hearing the rate sustained for a period of time at the

17 200 level or the 190 level. The machine sometimes will

18 go up and down based on a doubling or halving of heart

19 rate patterns.

20 And clearly at, say, 10:20 — I’m sorry –

21 12:20, you’re right, there are some markers there at

22 180, and there are some markers down there at 70 beats

23 per minute. So one can’t be sure whether the heart

24 rate is being doubled or halved or what’s going on. So

25 there’s a continued time where the nurses are looking

1 for this fetal heart rate, which they find somewhere

2 around twelve — it looks like about 12:28.

3 Q. Is there any harm, sir, during this half an

4 hour of the nurses searching for an accurate fetal

5 heart rate to calling Dr. D. and notifying him?

6 A. Well, of course not. And there was no harm

7 in not doing it, because we know when we look at the

8 tracing after 12:30 that there’s moderate variability,

9 some accelerations present. And whatever was going on

10 during that time when the doctor was not being notified

11 was nothing to cause this fetus any harm.

12 Q. Sir, have you heard of cord compression

13 being partial and some — and then total or partial and

14 then recovering and then partial again?

15 A. Well, first of all, no one really knows

16 whether cord compression is total or partial. Unless

17 you put a clamp on the cord, you don’t know that. You

18 can assume if the heart rate is 60 for 15, 20 minutes

19 and dropping down below 60 to 30, that it’s more than

20 likely more complete and total than it is partial. But

21 you never know that while you’re monitoring a fetus.

22 If you understand the pathophysiology of cord

23 compression, then you have to understand that there’s

24 no way to be certain whether it’s partial or complete.

25 But, of course, cord compression is a very

1 common phenomenon in a laboring patient. In this

2 particular patient we have no labor. So if the cord is

3 being compressed, it’s being compressed because the

4 fetus is doing it him or herself. In this case I

5 believe it’s — (pause)

6 Q. Do you want to know if it’s a boy or a

7 girl? Is that what you’re looking for?

8 A. Yeah, yeah. I lost my — it’s a boy –

9 sorry — him.

10 So we don’t really know whether any of this

11 is cord compression. I think more than likely it is

12 not, because she’s not in labor. We really haven’t

13 seen any cord compression.

14 I don’t know what’s going on here, quite

15 F.ly. I’m looking at a heart rate. I’m not looking

16 at any specific patterns. So I don’t know how anybody

17 could look at this and come up with an, “I know exactly

18 what’s happening” phenomenon here.

19 Q. Sir, again, if you don’t know what’s going

20 on; you wouldn’t expect a nurse for this half hour to

21 know what’s going on. Why wouldn’t you expect her to

22 at least call the physician pursuant to standards of

23 care, and maybe he can help her out as to what’s going

24 on?

25 A. Well, I don’t have a problem with that –

1 if they wanted to call Dr. D..

2 But as I interpret what the nurses are

3 doing during this time — and they certainly write

4 notes to give on an almost minute-by-minute basis to

5 explain what they’re doing — they’re turning the

6 patient. They’re trying to position to find a heart

7 rate that they had been having for hours and hours

8 prior to that. And I don’t find that this is a

9 violation of the standard of care that for 28 minutes

10 or 25 minutes they do that on a continuous basis until

11 they establish a pattern that is more recognizable.

12 Because, (a), they’re listening to the baby

13 periodically and, (b) — very importantly — there’s no

14 link to causation. Because once they get the heart

15 rate, it shows no evidence of fetal deterioration or

16 hypoxia.

17 So I don’t — I don’t have any criticism

18 for the nurses in how they’ve handled this patient. It

19 seems to me they’re doing a rather normal job of

20 following this patient in the middle of the night, who

21 is on terbutaline and who they’re trying to establish a

22 continuous heart rate pattern. But they’re not

23 expecting any nefarious event to be occurring.

24 Q. Sir, prospectively at midnight would the

25 nurses, while they’re trying to work this transducer,

1 know they would get the heart rate pattern back at

2 12:30 approximately?

3 A. I don’t think they know anything. They’re

4 just — they’re acting to try to reestablish a normal

5 baseline rate on a piece of paper. I assume that they

6 think they’re going to, because periodically they get a

7 rate.

8 If you look at 12:10 and up to 12:20, it

9 seems to me that any minute they’re gonna get it. And

10 then at 12:20 there’s a period of about another ten

11 minutes where — or six minutes, rather, it’s a little

12 bit more difficult. And then all of a sudden they get

13 it at about 12:28.

14 Q. Sir, if prospectively the nurses don’t know

15 when they’re gonna get back a stable heart rate pattern

16 again, why doesn’t the standard of care require them to

17 call the doctor in the interim?

18 A. Well, every time you have a patient who

19 you’re doing continuous monitoring on who is not in

20 labor and you’re having trouble establishing baseline

21 because of technical things, if they call the doctor

22 every time, that would create a real problem throughout

23 this country.

24 I mean, you don’t understand how often this

25 happens where nurses have a patient on the monitor –

1 she’s been on it since 6:30 in the evening of the 6th

2 of September. It is now, what, 36 hours later — or

3 whatever the number of hours is. She has had

4 continuous fetal monitoring. She’s had a change in

5 baseline many times. There have been occasional areas

6 of dropoff where they were unable to find the fetal

7 heart rate and they’ve had to reposition the patient.

8 I don’t see this as anything so unusual. I

9 know that in this case you’re alluding to the fact that

10 this is some terrible violation of the standard of

11 care. I just don’t see it that way.

12 Q. During any of the prior day and half where

13 she had continuous monitoring, sir, was there ever an

14 extended period of time at this time where the nurses

15 needed to get the fetal heart rate and supposedly there

16 was a transducer problem?

17 A. Well, I think it’s always been that. Even

18 this particular case here it was a transducer problem.

19 Because we finally get a rate that looks pretty normal

20 at 12:30, so nothing happened.

21 Q. How do you know it wasn’t a cord

22 compression that was not compressed any longer?

23 A. Well, it could have been.

24 Q. The fetus moved, for example.

25 A. It could have been, but no harm came of it.

1 That’s –

2 Q. That’s a separate question.

3 A. Well, it’s not to me, because I admit that

4 it could be cord compression, but it wasn’t sufficient

5 to cause any problems. I don’t think I’d put that high

6 on my list of etiologies.

7 I mean, why all of a sudden is there a cord

8 compression? The patient is not in labor. She doesn’t

9 have ruptured membranes. The fetus has not shown any

10 elements of any significant variable decelerations.

11 There have been some mild ones occasionally, but

12 nothing to support anything more dramatic than that.

13 So why would the nurse think that all of a

14 sudden we have a terrible cord compression and the

15 doctor needs to be notified to come in and hurry up and

16 do a cesarean section?

17 Q. Even if the nurse doesn’t think cord

18 compression, why wouldn’t she call the doctor because

19 she doesn’t know what to think is going on?

20 A. Well, I think she thinks that it’s a

21 transducer problem, and if she works long enough and

22 hard enough she’ll recapture the heart rate, which is

23 what she does.

24 Q. Why during this half an hour was there

25 essentially a half-hour transducer problem and during

1 the day and a half prior we never had a half hour of

2 alleged transducer problems?

3 A. I don’t know.

4 Q. Sir, you told me that since there was a

5 heart rate of 120 during certain points in time during

6 this half hour that it was okay to continue trying to

7 adjust the transducer. Would you agree with me if the

8 heart rate, say, was 60 and went up to 180 or was 180

9 and went back down to 60 at some point in time it’s

10 gonna pass through 120?

11 A. I have no idea what you’re talking about.

12 What do you mean “pass through”?

13 Q. Well, as you look at a fetal monitor, sir,

14 whenever you see the stylus and the heart rate is 60 at

15 one point in time and the next point in time it’s 180

16 and the stylus connects the dots, will you not pass

17 through the number “120″ at some point in time?

18 A. Oh, just as a pass-through, of course. But

19 if the machine is doubling, 60 doubled is 120, not 180.

20 And half of 180 is not 60; it’s 90.

21 So I don’t really know what’s going on

22 here. The monitor is searching for the heart, and the

23 baby has moved away. That would be the most likely

24 explanation, because I don’t see any harm that’s come.

25 I don’t — I see the monitor searching for a rate. It

1 finally finds it at twelve — it looks like about

2 12:28. And prior to that there were episodes, around

3 12:10, for example, for about five or six minutes where

4 there’s the appearance of a heart rate of around 120

5 beats per minute. So I don’t know what’s going on

6 here.

7 Q. Sir, you did mention that about 12:30 there

8 was a heart rate reestablished. And you also mentioned

9 something about doubling. How do you know the heart

10 rate that was reestablished was not doubled?

11 A. It doesn’t appear that way. The monitors

12 have built-in mechanisms to really avoid putting a rate

13 of 120 when it’s really 60. They’re much more

14 sensitive.

15 The doubling and halving that I’ve taught

16 about or worked with have been in patients in the older

17 monitors. The new computer technology with

18 autocorrelation really avoids that most of the time.

19 And so I really don’t think we have doubling or halving

20 of heart rates here.

21 What we had at the — when you saw prior to

22 that — at 12:20, when you saw a rate of 70 or a rate

23 of 120, I think the machine is just searching for the

24 heart and not finding it. That’s all I think is going

25 on here. I don’t think there’s a doubling or a halving

1 going on.

2 Q. Okay. So in your opinion, on this tracing,

3 until the baby delivered, the monitor did not appear to

4 be doubling; is that correct?

5 A. That’s my opinion, yes.

6 Q. So what type of monitor was used in this

7 case, sir?

8 A. It appears — the paper says “Corometrics

9 Medical Systems,” so I assume that it was a Corometrics

10 machine.

11 Q. And how old was the machine?

12 A. I’m not sure. But it certainly is old

13 enough — or new enough to have autocorrelation on it.

14 The tracing itself looks very much like the type using

15 the new autocorrelation. And to my knowledge, the

16 older machines are all gone.

17 Q. When were the older machines gone, to your

18 knowledge?

19 A. Gone from labor and delivery? I wrote an

20 article on autocorrelation as late as 1984 — ‘86, so

21 certainly by ten years later all of those machines

22 would be gone by then. So autocorrelation came into

23 being in the mid-’80s, and by the early ’90s I would

24 think most, if not all, of the fetal monitors that were

25 not using the new autocorrelation technology were gone.

CP Deposition part 2 (7/11)

admin — Mon, 10 Mar 2008 10:32:09 +0000

1 steroids, watch the patient, and if something

2 deteriorates or labor progresses, then to stop the

3 tocolytics and allow labor and delivery to occur. And

4 I think that’s what Dr. D. and these nurses were

5 doing.

6 This patient was 34 weeks. There was some

7 question about the total accuracy of 34 weeks, but

8 that’s about as close as they could come. And I think

9 the weight at birth pretty much confirms that, in fact,

10 she was 34 weeks. But to be on the safe side, they

11 elected to try to stop the labor, which they did for a

12 period of time, until the early morning hours of the

13 8th, when the heart rate went through some unusual

14 changes and they proceeded with a rapid cesarean

15 section.

16 Q. Okay. Let’s continue reading the strips

17 now from where we left off, if we could. We were at

18 about 10:30 p.m.

19 A. By the way, I did find the temperature of

20 100.4 at midnight on the 7th, so I just wanted to let

21 you know I found it.

22 Q. Okay.

23 A. Okay. Let’s see. Where are we now? We’re

24 at ten what — 10:40-ish?

25 Q. Fine.

1 A. Yeah, we now have what appears to be

2 resumption of the tachycardia for about, oh, ten,

3 fifteen minutes. There seem to be mild variable

4 decelerations that go down to about 150 beats per

5 minute. And that continues at a rate of 180 beats a

6 minute until 10:52 or 3, where it comes down slowly to

7 about 120, again with moderate variability. And that

8 lasts for a while, until it slowly goes back up to

9 about 130.

10 Q. What’s the etiology of this changing

11 baseline?

12 A. I think you’ve asked me that before, and I

13 don’t know. I really don’t. A change in some kind of

14 vagal tone or sympathetic tone. I just don’t know.

15 I’ve seen it before, but I don’t think anybody can give

16 you an accurate answer as to why this baseline has

17 changed. That’s why we look at variability.

18 You know, I wrote a — I wrote that article

19 back in the ’70s on variability being the key to fetal

20 well-being, and that’s still where we are today. As

21 long as that variability is in the reassuring range,

22 minimal or moderate, I think you’ve got a baby that’s

23 handling whatever is going on.

24 And in this particular case, even though it

25 goes from 180 to 125 or 120, there’s enough built-in

1 variability for me to assume that no deleterious event

2 is happening to this fetus, although I can’t explain

3 why there is such a dramatic change in baseline.

4 Q. Variability that is minimal or moderate is

5 still reassuring?

6 A. It is, in the absence of –

7 Q. But –

8 A. In the absence of any significant event,

9 such as a bradycardia, minimal variability is of little

10 consequence. It’s the absent variability that portends

11 a poor outcome, not minimal or moderate. Even marked

12 is an early sign of stress and is not a portender of a

13 bad outcome, assuming that that’s ongoing.

14 Q. Is there any significance to variability,

15 assuming it is good, hypothetically, and later

16 decreases and becomes minimal?

17 A. I think if there is some explanation such

18 as ongoing variable decelerations, ongoing late

19 decelerations, that it’s a sign of increasing fetal

20 stress but not distress. I think you can make a

21 decision to operate and remove the fetus from that

22 environment but with the knowledge that you may well

23 get a very healthy, well-oxygenated fetus.

24 When you get to absent variability, the

25 incidence of babies that are acidotic goes up

1 dramatically. So it’s the absent variability that

2 obstetricians and nurses are more concerned about.

3 Minimal variability in and of itself is not a sign of

4 fetal distress.

5 Q. Minimal variability is a sign of fetal

6 stress?

7 A. Not necessarily. Only if it were in

8 relationship to some pattern, such as repetitive

9 variable decelerations or repetitive late

10 decelerations. Then it would be a coexistent sign of

11 some fetal stress but certainly not distress.

12 Q. What causes the variability to be minimal

13 absent decelerations?

14 A. Oh, that can just be fetal sleep. That

15 could be the resting variability of this fetus at that

16 particular time. Minimal variability is detectable

17 variability up to about five beats per minute. And we

18 see that in laboring patients all the time. It’s a

19 very common finding. It’s interspersed with moderate

20 variability. Narcotics can do it. Sleep can do it.

21 And just a normal fetus that’s not been given narcotics

22 and doesn’t seem to be sleeping can have minimal

23 variability. It is not a pejorative term.

24 If it’s associated with repetitive

25 decelerations, it is a co-factor with the definition of

1 fetal stress. But, again, it does not meet the level

2 of distress that we use here at V.or of a very

3 nonreassuring fetal status that urgently requires an

4 immediate cesarean section.

5 Q. So, in your opinion, the standard of care

6 does not require a nurse to call a physician about

7 minimal variability?

8 A. That’s correct.

9 Q. Okay. If you can keep reading the records,

10 please.

11 A. With the caveat — let me just finish it –

12 that there are no repetitive decelerations that seem to

13 be a deterioration from moderate variability to minimum

14 variability.

15 Okay. As we continue, now this tracing is

16 looking, you know, more and more normal. The rate is

17 about 140 again. Moderate variability, accelerations.

18 I’m looking at 11:10, for example. That entire page

19 I’m looking at — 13635, 13636, 13637. I mean, that’s

20 just a very normal tracing. This baby is not taking

21 any hypoxic hits. This looks like just a very normal

22 tracing and with all the continuous monitoring that

23 we’ve done confirms that the heart rate is in the

24 normal range and no longer tachycardic.

25 And as I turn the page to 11:20, I see

1 pretty much the same thing. I’d call this a rate of

2 140 with accelerations, moderate variability. That

3 continues to twelve — I mean 11:30, with really no

4 significant changes. 11:40, the heart rate seems to be

5 about 145 with moderate variability, accelerations

6 present. This is not a sign of fetal hypoxia by any

7 means.

8 I’m now looking beyond that with a

9 continued rate of 140 with accelerations, and that

10 continues pretty much to midnight. And now at midnight

11 all of a sudden we have, again, more — more of these

12 accelerations or increased variability. It’s hard to

13 be absolutely sure. I think, looking at the previous

14 hour, I would at this point view them more as

15 accelerations from a baseline of about 130. But like I

16 said, I can’t be sure.

17 And then finally at twelve — probably

18 12:08 or 9 in the morning there is more of an erratic

19 pattern and one can’t be sure of baselines or

20 decelerations or accelerations.

21 Q. You mentioned several times, sir, you can’t

22 be sure. Do you believe that the standard of care to

23 treat patients is you do not have to treat them until

24 you’re sure of a certain diagnosis?

25 A. No. You can make certain treatment plans

1 based on a — a real suspicion of a diagnosis. But

2 there’s nothing in this tracing that would push a

3 physician to — or a nurse — to consider delivery

4 based on this fetal heart rate monitor interpretation.

5 I think sometimes when you’re not sure, you

6 want to take the path that leads you to the least

7 number of problems and complications. But, no, you

8 don’t have to be absolutely sure about a diagnosis

9 prior to acting. It’s very dependent on the situation

10 and circumstances.

11 Q. This new pattern that you described that

12 occurred around midnight, when, in your opinion, did

13 the standard of care require the nurses to tell D.

14 about this new pattern?

15 A. Well –

16 Q. Or they didn’t have to tell him?

17 A. No, no, no. The generic answer is that if

18 the nurse is having trouble with the fetal heart rate

19 patterns and not really knowing what to do, it’s at

20 that point that the doctor needs to be notified.

21 Q. Okay. Well, you just told me you’re not

22 even sure of the pattern, so how is the nurse supposed

23 to figure out what’s going on?

24 A. Well, what the nurse does at this point is

25 she makes every attempt to adjust the transducer, which

1 is — if you read the nursing notes, which I know you

2 have — that’s what — that’s what they’re doing.

3 There is enough in this area of 12:10 to

4 indicate that more than likely the heart rate is still

5 about 120 beats a minute. On the other hand, by about

6 12:20 the nurses are still searching for the heart rate

7 and trying to adjust the transducer. And I don’t think

8 they call the physician until twelve — let’s see.

9 Q. What are you looking at now?

10 A. I’m looking at the nursing notes and my own

11 notes to see what time Dr. D. was called. I know

12 he was called at 12:50 — is it 12:50 or 12:52 –

13 12:52. And there was a time before that –

14 Q. Let’s get back to this midnight time, sir.

15 A. 12:45. I’m sorry.

16 Q. We’re seeing this new pattern, and you’re

17 telling me the standard of care did not require the

18 nurses to call the doctor because they’re adjusting the

19 transducer; is that correct?

20 A. As long as they are still working and

21 convinced that it’s a matter of a transducer problem

22 and not some fetal distress problem, that’s their

23 responsibility.

24 Q. So could they work on this transducer for,

25 say, three hours, and as long as they’re working on it

1 they don’t have to call the doctor?

2 A. No, no, I didn’t say that at all. Three

3 hours would be clearly too long — two hours would –

4 an hour would. But it appears to me that from reading

5 their notes and looking at the tracing that they

6 periodically find that the heart rate is in the

7 acceptable range and keep trying. And I notice at

8 12:30 they are successful in getting a period of about

9 five minutes that shows a fetal heart rate pattern that

10 is very similar to the one that they had been getting

11 prior to the twelve midnight changes in pattern

12 recognition.

13 Q. Well, can you tell me, with reasonable

14 probability, what was the fetal heart rate between five

15 after twelve and the 12:30 time where they got that

16 pattern?

17 A. There is not enough information here to

18 give you that — to give you that rate.

19 Q. So for 25 minutes you don’t have enough

20 information to give me that rate, but nonetheless you

21 do not feel the standard required the nurse to inform

22 the doctor of this; is that correct?

23 A. That’s correct, as long as they’re working

24 with the patient trying to figure out what’s going on.

25 Remember, she’s not contracting. There

1 shouldn’t be any big change in this rate. Otherwise,

2 this baby has looked perfectly normal prior to that.

3 And as long as they’re thinking that it’s a transducer

4 problem — which it appears by 12:30 they have figured

5 out it is — I don’t — I don’t — I don’t believe that

6 they’re violating any standard of care by not calling

7 him during that 25-minute period of time.

8 Q. Have you ever heard, sir, of a patient

9 having a sudden cord compression where none existed

10 beforehand?

11 A. Sure.

12 Q. Is that well known to happen?

13 A. Sure.

14 Q. How long in such situations, sir, does the

15 standard of care allow nurses to think what they have

16 is a transducer problem before calling a doctor?

17 A. Well, they’ve got the transducer on the

18 abdomen, and they can hear periodically. For example,

19 during this 30 minutes we’re talking about, there are a

20 number of times where the paper actually traces out a

21 rate of about 120, 130 beats per minute. I couldn’t

22 give you a baseline rate because I need ten minutes of

23 data to support that.

24 But they’re putting the transducer, which

25 is just a Doptone device, on the abdomen and hearing

CP Deposition part 2 (6/11)

admin — Mon, 10 Mar 2008 10:30:37 +0000

1 of marked variability or tachycardia before she has to

2 call the doctor?

3 A. Well, I don’t think with marked

4 variability, which doesn’t last very long anyway in

5 this case, that the nurse ever has to call the doctor.

6 The tachycardia would be at some point

7 important for the doctor to know has occurred, assuming

8 that she has noted it for a long period of time. So

9 sometime between 12:10 p.m. on the 7th and ten o’clock

10 that night I think the physician needs to know that

11 there has been an ongoing tachycardia.

12 Q. Okay. But my question was how long, in

13 your opinion, does the standard of care allow the nurse

14 to watch the monitor for tachycardia before she’s

15 required to call the doctor? I mean –

16 A. There is nothing — there is nothing

17 sacredly written down as a time interval. I think it’s

18 a judgment call. But certainly after an hour or two of

19 tachycardia, I think the nurse needs to let the

20 physician know that there is tachycardia. He may –

21 Q. Well, is the –

22 A. Excuse me. He may well know that this

23 is — that this could easily be part of the terbutaline

24 therapy too, which I really failed to mention, so let

25 me mention it now.

1 Terbutaline, which has been given to the

2 patient, is a — is a very significant cause of fetal

3 tachycardia. So the nurse has to understand that this

4 is either a core temperature problem of the fetus or

5 terbutaline therapy that’s being administered. And

6 while I answered earlier that more likely than not it

7 was a core temperature problem, I’d have to put the

8 terbutaline issue right up there with it as an equal

9 partner, so to speak, in causation for fetal

10 tachycardia.

11 So assuming that the nurse is convinced

12 that this heart rate is up because of the terbutaline,

13 she really doesn’t have to call the doctor.

14 You only call the doctor if you think there

15 is some change that needs to occur; that somebody needs

16 to do something — either evaluate, come in and

17 deliver, change course of — change course of direction

18 in management. And I don’t really see that here. I

19 think the average, prudent nurse would think that with

20 an afebrile mother that this is either a core

21 temperature problem or a terbutaline problem, at worst

22 it’s fetal stress, but there’s no evidence of hypoxia

23 or distress. And I’m not really sure that she needs to

24 notify the doctor that this is — this is occurring.

25 Q. Sir, I thought you told me a few answers

1 ago that a nurse is not allowed to make a diagnosis;

2 she just has to inform the doctor about what’s going on

3 and he makes the diagnosis.

4 A. Well, technically that’s exactly right, but

5 nurses do make diagnoses in their head. I mean,

6 they’re not — they’re professional individuals who

7 have a considerable amount of intelligence and can

8 figure these things out. I’m talking about that

9 they’re not — their job description is not to

10 diagnose. Their job description is to monitor and to

11 let physicians know of events as they occur in a manner

12 that would allow the physician to intervene

13 appropriately. But, of course, nurses diagnose, but

14 they wouldn’t put down, “Impression, abruptio placenta”

15 or, “Impression, fetal distress.” They would put down

16 “fetal heart rate bradycardia,” knowing that that’s

17 fetal distress, but they wouldn’t necessarily put that

18 down.

19 Q. Okay. So did the standard of care here

20 allow the nurse to assume that the tachycardia was due

21 to terbutaline and not call the physician?

22 A. Oh, absolutely. Or even that the

23 temperature might be slightly elevated. As long as the

24 mother’s temperature is not demonstrating a significant

25 problem, then I think it’s okay.

1 For example, at ten — I believe at ten –

2 one second. I want to check something.

3 What I’m looking for is there was a point

4 where the temperature went to 100.4 and the doctor –

5 Dr. D. was notified. And that was — (pause)

6 I’m looking for the time when her — when

7 the mother’s temperature went to 100.4. I just can’t

8 locate it at this point, but I have written a note to

9 myself, which you have in front of you too, from my

10 notes, that the doctor was notified about that, which

11 is an appropriate thing to do. I’ll keep looking while

12 you’re asking me other questions.

13 Q. That’s fine.

14 Sir, would you agree with me that a

15 physician would expect his nurse to call him when a

16 patient has tachycardia and inform him of that and

17 allow him to make the determination if it may be due to

18 terbutaline or an increased core temperature or

19 infection or what have you?

20 A. Yes. I think nurses need to let their

21 doctor know when there is a fetal tachycardia and let

22 the physician make that particular call.

23 Q. That’s part of the standard of care for

24 nursing; correct?

25 A. I believe that it is a standard of care for

1 nurses to keep doctors upgraded — or updated.

2 For example here, I’m looking at notes

3 where the nurse wrote, for example, at two o’clock in

4 the afternoon — I assume that’s the 7th — Dr. D.

5 aware that fetal heart rate is 160s to 170s.

6 So I assume that the nurses are letting the

7 doctor know. At 3:30 Dr. D. was there looking at

8 the strip. I’ve never, in reviewing this, felt that

9 the doctor was not informed as to this particular fetal

10 heart rate tracing. And the level of concern that

11 started later, in the early morning hours of the 8th,

12 the nurses are appropriately calling and updating in a

13 more frequent manner.

14 Q. Sir, what is the basis for your opinion

15 that you told me earlier that it could be even one to

16 two hours of fetal tachycardia before a nurse is

17 required to call a physician and inform him that his

18 patient has tachycardia?

19 A. Well, I’m giving you a generic time line.

20 If the physician has been in and has reviewed the

21 record and nothing much has changed, then the nurse can

22 watch the tachycardia for hours and hours, which I

23 think is happening here.

24 But I don’t think that — that was a very

25 generic term, assuming that an hour or so has gone by

1 of fetal tachycardia and the doctor did not know that

2 tachycardia has been ongoing, then I think the nurse

3 should be calling. But that was more of a generic and

4 not specifically related to this case.

5 Q. So in this specific case, sir, is it less

6 than an hour or two that you believe tachycardia can go

7 by before the standard requires the nurse to inform the

8 doctor of it?

9 A. Well, the only reason I’m hesitating is

10 that, you know, there is nothing written down in any

11 kind of national standard that says that after 60

12 minutes a nurse has to call the doctor with an

13 unexplained tachycardia. It could be — it could be

14 two hours. It could be thirty minutes. Everybody is a

15 little different on this. So there is really no

16 specific standard.

17 I’m telling you, from my point of view,

18 that somewhere around an hour to two of an unexplained

19 tachycardia should be brought to the doctor’s

20 attention, assuming that there isn’t some very obvious

21 reason that had already been ongoing and discussed.

22 And in this particular case, being on

23 terbutaline, which is a — which is a very common cause

24 of fetal heart rate tachycardia, I think these nurses

25 are watching this tachycardia and assuming that the

1 doctor understands what’s going on.

2 Q. But, of course, it existed earlier in the

3 day.

4 A. Yes. It starts at around 12:10, and we

5 know that the doctor has been in to see the patient,

6 that the nurses have communicated with the doctor. So

7 I’m assuming that nothing else has changed. And when

8 you look at the monitor strip, nothing has changed.

9 And when it does change, they do call him.

10 Q. Why, sir, if the terbutaline is causing the

11 fetal tachycardia, why isn’t it a continuous fetal

12 tachycardia from 12:10 until the delivery of this baby?

13 A. I’m not sure I understand the question.

14 Could you repeat it?

15 Q. Sure. Was not the patient receiving

16 terbutaline from 12:10 on?

17 A. Yes. Well, let’s see. Yes. At 11:30

18 terbutaline restarted, and at 4:15 it was stopped. And

19 then sub q terbutaline was given.

20 So in one form or fashion, yes, it was

21 being given. And that would explain –

22 Q. And so if terbutaline is the cause of the

23 fetal tachycardia, why isn’t it constant?

24 A. Oh, babies adapt. It’s a physiological

25 event that I don’t think anybody could really explain

1 to you or anybody else with satisfaction. We have

2 patients who are on terbutaline that never get fetal

3 tachycardia. And we have patients that have fetal

4 tachycardia, and then the fetal tachycardia goes away.

5 We have patients who have fetal tachycardia and never

6 get rid of their fetal tachycardia. We really don’t

7 have any reason for why babies change their baseline

8 despite being on terbutaline. It may be an adaptive –

9 it may be an adaptive thing that the heart rate adapts

10 to this or the receptor sites are all filled and you

11 get an early tachyphylaxis or downgrading of receptor

12 sites. But that’s a very physiological answer to a

13 clinical situation that doesn’t really portend an

14 ominous outcome or change in therapy.

15 Q. If the reason was the tachycardia went away

16 is because the fetus adapted to the terbutaline, why

17 did the tachycardia recur in this fetus who adapted?

18 A. Well, you’re asking some very interesting

19 questions, and I suggest you join us in research,

20 because we just don’t know. I mean, I wish I knew, but

21 I don’t.

22 Q. Why, sir, when I asked you at the earlier

23 onset of the deposition, with a reasonable degree of

24 medical probability, as to the cause of the

25 tachycardia, you mentioned the core temperature

1 increase in the fetus but left off terbutaline on that

2 list?

3 A. That was a — an error on my part. It just

4 somehow didn’t enter my brain until all of a sudden I

5 realized that that was an important parameter. And I

6 just failed to mention it and wanted to correct that

7 for this deposition. It was an error on my part.

8 Q. Did you know, sir, at the beginning of this

9 deposition that this mom was on terbutaline?

10 A. Of course. Take a look at my notes. I’ve

11 got it written all over my notes. I just — in

12 speaking and trying to answer — looking at a phone,

13 for some reason or another that bit of information just

14 didn’t reach the right cells in my brain. And I

15 quickly corrected it as soon as I realized that I had

16 left it out.

17 Q. Okay. Prospectively could the nurse

18 determine whether the fetal tachycardia was due to

19 terbutaline or due to infection of the fetus or a

20 raised core temperature of the fetus?

21 A. Not really. I don’t think anybody can

22 really tell that with any real accuracy. Obviously, if

23 the mother’s temperature is normal, that puts it more

24 in the realm of terbutaline being the cause. And if

25 the temperature is elevated, it could be a combination

1 of the two.

2 Q. Are there any treatments or measures that

3 the physician would do for his patient if he knew that

4 the fetus had a tachycardia due to either infection or

5 due to, say, an increase in core temperature?

6 A. Well, if the health care provider, like

7 Dr. D., knows that there is an amnionitis present,

8 then he obviously has to take a different approach to

9 therapy.

10 But just looking at a fetal heart rate in a

11 patient such as this would not allow him to do that

12 unless he did an amniocentesis to look for white cells

13 and bacteria in the amniotic cavity.

14 Q. Have you ever done such a thing?

15 A. Sure.

16 Q. How would you do — how would you even know

17 to do such a thing on your patient unless you knew your

18 patient had a fetal tachycardia?

19 A. Well, you can have babies that are infected

20 that don’t have fetal tachycardia, so that isn’t the

21 driving force.

22 There are doctors who at 34 weeks might do

23 an amniocentesis to look for signs of infection.

24 That’s not necessarily the standard of care. The

25 standard is to treat the premature labor, give